Selected Mental Health Cases: CIVIL

Selected Mental Health Cases: CIVIL

The information contained on these pages is not intended to replace legal research, but is meant only as a quick reference guide. While efforts will be made to keep this list current, researchers should engage in independent legal research to assure the continuing validity of any case or comment.

The published opinions from the Supreme Judicial Court, the Appeals Court from 2001 to date and unpublished decisions of the Appeals Court pursuant to Rule 1:28 from 2008 to date are available online for free here. A limited number of decisions from the Appellate Division of the District Court can be found at the same web page. Federal cases are available through one of the commercial legal research sites or by searching either by citation or case name on Google® Scholar.

The cases on this list are linked to external cites. Please click on the case name to access the link for that case. Please email mhweb@publiccounsel.net if you find that a link does not work.

This material is arrange by date of decision.

Selected Civil Cases (Chronological)

2018 Decisions

In the Matter of F.C. (McLean)

Facts: As with the client in In the Matter of N.L., the respondent was denied a continuance to prepare a defense. The parties agreed to a stay pending decision in N.L. On the release of the opinion in N.L., the Appellate Division summarily dismissed F.C.’s appeal as moot. The SJC took the case on its own motion to clarify its prior ruling.

Holding: Nothing in the N.L. was meant to render pending appeals as moot and the Appellate Division was in error when it summarily dismissed the appeal. In finding that “Appeals from expired or terminated commitment and treatment orders under G. L. c. 123, §§ 7, 8, and 8B, like appeals from expired harassment prevention orders (G. L. c. 258E) or expired abuse prevention orders (G. L. 209A), “should not be dismissed as moot where the parties have a continuing interest in the case.”  The court found that F.C. has a continuing interest in the case  “[a]t the very least, [because] a person who has been wrongfully committed or treated involuntarily has “a surviving interest in establishing that the orders were not lawfully issued, thereby, to a limited extent, removing a stigma from his name and record.”

Relying on the finding that there is a stigma attache do civil commitments in Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271, 276 (1978) the Court held the while “an expired or terminated order may no longer have operative effect, the appeal should not be
dismissed without considering the merits of the underlying order.”

2017 Decisions

In the Matter of A.D., 2017 Mass. App. Div. 183

Facts:  A.D. was committed under 7/8 and challenged the sufficiency of the evidence.  The notice of appeal was filed one day after A.D. was discharged.

Holding: The Court dismissed the appeal as moot, since claims based on insufficiency of the evidence are generally not seen as “capable of repetition yet evading review” due to the unique nature of the facts involved in the particular case.  Since A.D. had been discharged the Court held “This is not a controversy in which A.D. continues to have a personal stake in the outcome.”  In spite of dismissing the appeal as moot, the Court went on to reject A.D.’s argument that in the absence of written findings of fact and rulings of law it is impossible to ascertain whether the judge applied the requisite standard of proof beyond a reasonable doubt and how she concluded that the evidence met that standard.  The Court stated (citing its recent decision in D.S., below) that there is no statutory requirement that findings of fact or rulings of law be issued in commitment cases.  The Court concluded “The evidence was sufficient to allow the hearing judge to make the necessary findings allowing the petition for commitment.”

In the Matter of C.V., 2017 Mass. App. Div. 29

Facts: The issue on appeal was whether the trial court had erroneously applied a “clear and convincing” evidence standard to a commitment petition under s. 7&8.

Holding: Although the matter was moot because C.V. had been discharged prior to the appeal, the Appellate Division (Southern District) exercised its discretion to hear the case as a matter of “public importance, capable of repetition, yet evading review,” and due to the stigma associated with a finding that a person is mentally ill. The Court held that the trial court had applied the incorrect standard of proof to the commitment petition because “the long-standing standard of proof for allowance of a petition for involuntary commitment under G.L. c. 123, §§ 7 and 8 is ‘beyond a reasonable doubt,’” citing to Superintendent of Worcester State Hospital v. Hagberg, 374 Mass 271 (1978) and also Guardianship of Roe, 383 Mass. 415, 423-424 (1981).

In the Matter of D.K.,  2017  Mass.  App. Div.  129

Facts:  D.K. claimed that there was insufficient evidence to find a likelihood of serious harm under the third definitional prong of G.L. c. 123, s. 1 following the SJC’s holding in In Re:G.P., 473 Mass. 112 (2015). (See below) Specifically, D.K. claimed that evidence regarding her refusal to eat and hydrate in 2014 was too remote in time to support a finding of a current and imminent likelihood of serious harm based on a “very substantial risk of physical impairment or injury to the person himself as manifested by evidence that such person’s judgment is so affected that he is unable to protect himself in the community and that reasonable provision for his protection is not available in the community.”

Holding: Although D.K. had since been discharged from the Hospital, the Court decided the case on the merits, finding that the issue was one of public importance that was capable of repetition yet evading review. The Appellate Division (Northern District) affirmed the commitment order.  While it acknowledged G.P., the Court nevertheless held that evidence that D.K. was unable to care for her hygiene and grooming in the hospital during the two months prior to the hearing met the required standard.  The Court stated “A failure to meet such basic needs self-demonstrates the imminence and inability to protect oneself.”

**Note – the D.K. case is on further appeal to the Appeals Court**

In the Matter of D.L., 2017 Mass. App. Div. 185

Facts:  D.L. prevailed on the merits at his commitment hearing out of Pembroke Hospital, with the District Court finding that the Hospital had not met its burden of showing that D.L. presented a “very substantial”  risk of serious physical injury to himself by reason of impaired judgment.  Specifically, it found that he had been eating and drinking.  Following the denial of the petition, Pembroke contacted members of D.L.’s family to try and arrange a place for D.L. to go upon discharge.  Neither D.L.’s grandmother nor his aunt were willing to take D.L. in to stay with them due to concerns about his safety.  D.L.’s father could not be reached.  After that  “D.L.’s attending psychiatrist noted in the medical record that he remained concerned for D.L.’s safety and that he continued to believe that D.L.’s insight and judgment were impaired by his psychotic condition such that D.L. was unable to take care of himself.”  Discharge to a shelter was apparently also ruled out as unsafe.

Approximately 90 minutes after the denial of its petition on the merits, Pembroke applied – without releasing D.L.- for his transport to South Shore Hospital under section 12(a).  D.L. was then “released” to be “transferred by ambulance directly to South Shore Hospital pursuant to section 12(a).”  Pembroke called ahead to South Shore, as contemplated on the 12(a) form.  South Shore then evaluated D.L. and applied for his (re)admission to Pembroke under section 12(b).  D.L. was readmitted to Pembroke, which then timely filed another petition.  D.L.’s counsel filed a Motion to Dismiss on the grounds that Pembroke’s failure to actually discharge D.L. following denial of their first petition on the merits amounted to an “illusory” discharge, thereby rendering his subsequent re-admission under section 12 an abuse or misuse of the section 12 process.  The Motion to Dismiss was denied and D.L. appealed on the grounds that his discharge had been “administrative” and “illusory” and that his subsequent readmission under section 12 was therefore improper.

Holding:  In spite of facts tending to show that D.L. was never free to leave, the Appellate Division found that D.L. had in fact been discharged.  It held that the discharge was not “illusory” under Newton – Wellesley Hospital v. Magrini, 451 Mass. 777 (2008) because D.L. was taken to a separate facility that conducted its own evaluation of D.L.  The Court began its analysis by relying on FN 14 in Magrini to state that there is no absolute prohibition on the temporary recommitment of a patient who is discharged following the denial of a petition.  It then went on to distinguish the C.D., B.F. and S.B. cases (see below) – all of which involved readmissions following dismissals that were deemed improper by the Appellate Division.  It held that unlike in those cases, here D.L. had been “actually discharged” and that the new section 12 application had been made in response to “new information” i.e. the unavailability of D.L.’s family to take him in upon discharge.   The Court further found that since the application was made to a different hospital, this “relinquishment” of D.L. both  constituted a discharge and gave D.L. the benefit of an independent evaluation by a separate medical staff.

***NOTE: This case is under further appeal to the Appeals Court.

In the Matter of DS., 2017 Mass. App. Div. 157

Facts:  D.S. was committed under 7/8 and filed an appeal based on insufficiency of the evidence. D.S. was discharged five days after the filing of the notice of appeal.  D.S. was 24 years old and was admitted after “setting two fires in his home.”  He had burned a Bible and attempted to melt copper in the fireplace.  D.S. was diagnosed as having “schizophreniform disorder” although the existence of a mental illness was also challenged on appeal.   The Appellate Division (Northern District) stated that the doctor was “Not concerned about risk of harm by reason of suicide or homicide…[S]he was concerned …about his judgment being impaired as evidenced by lighting fires at his home and his behaviors on the unit, including taking and hiding [a] telephone cord.” Testimony from the hospital’s doctor showed “difficulty putting together a coherent narrative of recent events…”  However, D.S. also testified and acknowledged poor judgment in setting the fires and offered an explanation for the manner in which he tried to dispose of the torn Bible.

Holding: The Appellate Division dismissed the appeal as moot, since claims based on insufficiency of the evidence are generally not seen as “capable of repetition yet evading review” due to the unique nature of the facts involved in the particular case (citing Matter of L.C. 2015 Mass. App. Div. 98, 100 and In Re: Commitment of K.R. 2012 Mass. Ap. Div. 229.) Since D.S. had been discharged the Court held that he is no longer subject to the orders of the court, and no longer has a stake in the outcome.  The Court further held that “D.S. has not stated how the facts present in this case are not unique to this matter and therefore are capable of repetition and merit review despite it being moot.”  In spite of dismissing the appeal as moot, the Court went on to state “It should be noted that the evidence presented by the hospital in the instant matter was clearly sufficient to support the court’s order of commitment.”

In the Matter of E.A.,  2017 Mass. App. Div. 149

Facts: E.A. was allowed to sign himself into the hospital as a conditional voluntary patient.  However, on the same day, the admitting physician determined upon examination that E.A. had “no understanding as to why he was admitted.”  A week after his admission, the Hospital filed a petition to commit.  Counsel for E.A. moved to dismiss the petition as having been untimely filed, arguing that E.A.’s original 10/11 admission was not valid, and the subsequent petition fell outside the 3-day limit for involuntarily held patients. The Court agreed, allowing the motion to dismiss and ordering E.A.’s immediate discharge.

After learning of the discharge order, the hospital prepared discharge instructions that advised E.A. that “You were discharged by the court with the understanding that you would be reevaluated for admission and arrangements were made for you to be evaluated by the local crisis team.” E.A. refused to sign the discharge instructions and the doctor then ordered security to escort E.A. off the locked psychiatric unit, but to remain with him in a locked vestibule area.  E.A. was then escorted by a social worker back onto the unit to collect his belongings.  The social worker and another staff member then “escorted” E.A. across the street to the Community Healthlink clinic for evaluation. He was not allowed to leave the premises of the hospital at any time without being accompanied by staff.  After the hospital received the order of dismissal and discharge from the Court, the hospital doctor executed a 12(a) for the clinic evaluation. The clinic later applied again under 12(a) for E.A.’s admission to the hospital.  He was examined and admitted to the Hospital again under 12(b).

The hospital filed a second petition for commitment and E.A. filed a second motion to dismiss, arguing that the continued restraint on his liberty following the discharge order rendered the discharge order illusory. The second judge found that the hospital had properly discharged E.A. and that his restraint was lawful under 12(a). The court denied the motion to dismiss and ordered E.A.s commitment. On appeal, E.A. claimed that the motion to dismiss should have been allowed under Hashimi and Magrini.

Holding: The Appellate Division (Western Division) held that the hospital complied with the court order and ruled that Magrini was distinguishable because E.A. had been “formally discharged, albeit for only a short time” and his readmission under s. 12 only began after he had been “discharged.” Relying on Footnote 14 of Magrini, the Court did not credit E.A.’s argument that where a judge orders discharge, the hospital must actually physically release the person into the community regardless of mental illness and any associated risk of harm. The Court instead relied on Footnote 14 of Magrini to hold that the SJC “recognized the danger presented in absolutely prohibiting a physician from temporarily recommitting a patient he or she diagnosed as suffering from a mental illness and whose failure to hospitalize, in the opinion of a physician, would create a likelihood of serious harm.”  Because it found that E.A. had been “discharged”, the Court held that the re-evaluation and readmission was not prohibited by Magrini.

In the Matter of F.C., 16-ADMS-10044  (March 16, 2017)

Note: Link not on MASSCASES. Reversed by SJC  on May 17, 2018 (See above)

Facts:  F.C. requested a brief continuance to prepare his defense. The Trial Court denied the Motion to Continue.  F.C. appealed but the appeal was stayed pending the outcome of a similar case,  In the Matter of N.L. , 476 Mass. 632 (2017)(See Below).

Holding: Although the SJC decided in N.L. that the statute requires that a first request for a continuance be granted in order to prepare a defense, the Appellate Division (Northern District) dismissed F.C.’s appeal as moot, rather than vacating his commitment pursuant to the holding in N.L.

In the Matter of K.P.,  2017 Mass. App. Div. 4

Facts: The hospital filed a 16(b) petition against K.P. It asked counsel for K.P. to assent to a continuance because its expert witness would be unavailable to testify within the required 14 days. Counsel refused to assent. On the day of the hearing, the petitioner “commenced” the hearing by putting on the expert’s supervisor, who testified about to her relationship with the expert witness and her [the supervisor’s]limited knowledge of the case. After cross-examination of the supervisor, the petitioner asked for a continuance.  Over K.P.’s objection, the court continued the hearing. The Court then resumed the hearing at a date beyond 14-day time period, treating Counsel’s objections on that day as a motion to dismiss the petition on the grounds that the hearing was not commenced timely. The court denied this motion and committed K.P.   K.P. appealed, asserting that the trial court had no jurisdiction to hear the petition because it had failed to adhere to the time required for commencing a hearing under s. 7(c).

Holding: The Appellate Division (Northern District) held that the motion to dismiss should have been allowed and vacated the commitment.  It reasoned that the District Court had failed to commence the hearing within the 14 days required by G.L. c. 123, s. 7(c) and in accordance with Melrose-Wakefield Hospital v. H.S., 2010 Mass. App. Div. 247.  The attempt to “commence” the hearing with testimony from a non-material witness ran afoul of the timelines and the decision in Melrose-Wakefield.  A hearing is only “commenced” where a sworn witness gives material testimony.  A non-material witness may not be utilized in an attempt to avoid a dismissal and secure a date for a necessary but unavailable witness.

In the Matter of K.T.,  2017 Mass. App. Div. 80

Facts: Following the direct and cross-examination of the Hospital’s doctor,  Petitioner and the Court engaged in a “dialogue” in which the Petitioner conceded that although the petition had alleged only risk of harm to self and others,  no real evidence of either type of  harm had been adduced.  Rather the evidence pointed more towards the “third prong where she’s been unable – we’re arguing she’d be unable to protect herself in the community.”  Upon the court’s own suggestion, the petitioner sought to change the harm alleged from substantial risk of physical harm to self and others to a very substantial risk of physical impairment or injury to self (prong 3). The court appeared to allow this amendment to the petition, and committed K.T. on the basis of a ground that was not originally pled in the petition.

Holding: The Appellate Division (Southern District) held that it was error to allow the petition to be amended at the close of evidence because the associated lack of notice severely prejudiced K.T.’s ability to prepare a defense.  The petition had already given notice to K.T. of the issues to be tried and the newly added basis for commitment would require a “quite different” type of preparation.  It therefore deprived her of time to prepare an adequate defense.  [1]

The Court stated,

“the petition identified the specific issues to be tried, danger to oneself and danger to others (specifically excluding the basis for which K.T. was committed). The issues of dangerousness to others (homicidal behavior) and self (suicidal behavior) are quite different from the issue of a person’s ability to maintain oneself in the community. The latter would require counsel to defend and develop witness testimony and documentary evidence as to such factors as housing, treatment, medication compliance, and other factors to demonstrate that K.T. would be safe and be able to take care of herself in the community. When a petition does not specify a basis for commitment, it is reasonable for counsel not to address the issue in trial preparation; as such, K.T. was severely prejudiced by an unclaimed theory being the basis for commitment at the end of the hearing. The transcript of the hearing reveals that the hospital’s request for an amendment to conform to the evidence occurred at the end of the cross-examination of the petitioning doctor, after the court, sua sponte, ordered K.T. held in order to conform to the as yet unheard treatment plan. Counsel for K.T. lodged a timely objection. It was error to allow the petition to be amended under the circumstances of this case.”

In the Matter of M.C.,  2017 Mass. App. Div. —

Note: Link not on MassCases yet.

Facts: M.C. was facing a petition for commitment under G.L. c. 123, section 16.  Two days prior to the hearing, counsel filed a “Motion to Hold Hearing at the Courthouse.”  The motion was denied.  Partway through the hearing that was subsequently conducted at the hospital, the recording device began to malfunction and the court clerk began recording the proceeding on his iPhone.  When this was brought to the attention of the Court and the parties some time later, counsel for the Respondent renewed her request to hold the hearing at the courthouse.  This was denied and the hearing resumed, being recorded on both the clerk’s iPhone and another recording device that hospital counsel had retrieved from his office at the hospital.  The client was committed and appealed.  Appellate counsel discovered that the recording was incomplete and moved under Rule 60(b) to vacate the commitment order on these grounds. The motion to vacate was denied and M.C. appealed this denial and the commitment order.

 Holding: The Appellate Division (BMC) held the matter to be moot because the issue of a malfunctioning recording device was “unique” to M.C. and would have little or no precedential value in any other case. Nonetheless, the Court addressed several issues. First, it held that the assistant clerk magistrate did not violate the prohibition of covert recordings under Special Rule 308(B) because he took appropriate and reasonable steps to activate a back-up device upon learning that the recording device provided by the trial court had failed. It also held that the clerk’s substitute recording was not the type of covert recording contemplated by the Special Rule. Second, the Court held that the trial judge did not err in not allowing the hearing to be held at a courthouse because he provided sufficient reasons. Further, he did not use language that in any way denigrated the rights of people alleged to suffer from mental illnesse

 **Note – the M.C. (2017) case is under further appeal and is pending in the SJC**

In the Matter of N.D.,  2017 Mass. App. Div.    —

Note: Link not on MassCases yet.

Facts: N.D. was found incompetent to stand trial and committed under section 16(b).  She claimed that there was insufficient evidence to warrant a finding that failure to hospitalize her by reason of mental illness would cause a likelihood of serious harm.  She also alleged that the judge erred in allowing inadmissible hearsay.  Although N.D. had been subsequently committed under 16 ( c ) at the time her appeal was heard, she argued that the appeal was not moot because a reversal of the 16(b) commitment order would affect the validity of the 16(c) order she was currently being held under.  In addition, she claimed an ongoing stake in the outcome of the appeal due to firearms prohibitions and the possible effects on her future employment.

Holding: The Appellate Division (BMC) held that the matter was moot because once the 16(b) order expired, N.D. no longer had a personal stake in the outcome of the 16(b) appeal. She was being held pursuant to a different order, i.e.  a subsequent 16(c) order that originated out of a different hospital. The Court stated that it had no jurisdiction to affect the current 16(c) order out of Tewksbury since that order was under the jurisdiction of the Lowell District Court. The Court also stated that N.D.’s inability to obtain a license to carry a firearm or obtain an FID card would not change even if the 16(b) were vacated because the court ordered evaluation under 15(b) also prevents her from carrying a firearm and obtaining an FID card. Lastly, the Court reasoned N.D.’s claim that the 16(b) order would adversely impact her ability to obtain future employment was speculative because there was no evidence that the 16(b) commitment would automatically or arbitrarily bar her from future federal employment opportunities. The Court declined to exercise its discretion to hear the merits of the appeal because it determined that the issues concerning the legal sufficiency of the evidence and the admissibility of certain evidence were necessarily unique to the case.

 In the Matter of N.L., 476 Mass. 632 (2017)

Facts: N.L. filed a motion to continue his commitment hearing so that he could prepare an adequate defense with the aid of an independent medical examiner. The Court denied his motion, committed him under sections 7&8 and allowed an 8B treatment order.

Holding: The SJC dismissed the appeal as moot, but exercised its discretion to decide the substantive issue as a matter of public importance that was capable of repetition yet evading review. The Court held that when a Respondent requests a first continuance, the trial court must grant it where a denial of the request is reasonably likely to prejudice a person’s ability to prepare a meaningful defense. The length of the continuance is within the discretion of the judge and delays should be minimized so as to reduce the period of time that a Respondent is deprived of his liberty without judicial review. The Court reasoned that this interpretation is not only in accord with the plain language of the statute, but also consistent with the trend toward increased due process protections afforded those facing involuntary hospitalization and/or commitment.

In the Matter of S.B.,  2017 Mass. App. Div. 123

Facts: S.B. was admitted on a section 12 and the Hospital failed to file its commitment petition before the three-day period expired.  Trial counsel filed a Motion to Dismiss and the motion was allowed.  However, rather than actually discharging the client, the Hospital took her into another room and did an assessment that resulted in her paper “discharge” and readmission under section 12(a) and 12(b).   The hospital then filed another petition.  A second motion to dismiss was denied and the client was committed.  The denial of the second motion to dismiss and the resulting commitment order were appealed.

Holding: Although the client had been discharged and thus the case was moot, the Appellate Division (Southern District)  agreed that the appeal presented an issue that was capable of repetition yet evading review and decided it on the merits.  The Court found that under the factual circumstances that were purported to constitute a “discharge”, there was no true discharge and readmission that would allow the hospital to validly file a new petition.  Thus, the hospital’s efforts were more akin to the effort made in Magrini to avoid the Court’s first order dismissing the petition, as opposed to a scenario that footnote 14 in Magrini suggests might constitute a hypothetically “acceptable”  discharge and subsequent readmission.

In the Matter of T.M.,  2017 Mass. App. Div. 99

Facts: The Court committed T.M. and authorized an antipsychotic and fifteen ECT treatments.  Several weeks after the hearing, the hospital moved for a treatment plan to add twenty more  ECT treatments. T.M. opposed the motion and, prior to the second hearing, moved for a continuance so that an IME could be available to testify on his behalf. The granted the continuance but also authorized two interim ECT treatments.  After hearing, the Court allowed the hospital’s motion to amend the treatment plan. T.M. appealed from the order, claiming that the court erred in amending the treatment plan because it failed to: (1) determine that T.M. was not currently competent to give informed consent and (2) apply a substituted judgment analysis.

Holding: The Court (Northern District) dismissed the appeal, but decided the issues because they were of public importance and capable of repetition yet evading review. It held that the District Court erred in not making a new determination of competency at the second hearing because section 8B(d) precludes a court from entering a treatment order unless it “specifically finds that the person is incapable of making informed decisions concerning the proposed medical treatment.” The Court reasoned that this statutory language is consistent with the established principle that a person’s competency can change over time (citing Guardianship of Zaltman, 65 Mass. App. Ct. 678, (2006)) and that an 8B hearing requires a determination as to whether the person is currently capable of making informed decisions (citing Guardianship of Pamela, 401 Mass. App. Ct. 856 (1988)). The Court further noted that  “Indeed a finding of competency would result in automatic termination of the treatment plan then in effect.” (citing Guardianship of Weedon, 409 Mass. 196 (1991))

The Court further held that whenever a court makes a determination of incompetency, it must apply a substituted judgment analysis prior to authorizing extraordinary treatment (citing Guardianship of Doe; 411 Mass. 512 (1992)) Guardianship of Roe, 383 Mass. 415 (1981) and Standard 11:02 of the District Court Standards). It thus rejected the Hospital’s assertion that a new substituted judgment determination was unnecessary, given that one had taken place a few weeks prior. The Court further rejected the Hospital’s claim that since a hearing had taken place a few weeks prior the court could simply use its discretion in ruling on the Hospital’s motion to amend which sought “merely” to add more ECT treatments.  The Court ruled that the decision to accept or reject a proposed treatment plan is not within the trial court’s discretion; rather, it is “an individual right, a matter of personal choice” (citing Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728 (1977)).  A court may only become involved in this otherwise very personal decision if the person is found to lack the capacity to give informed consent. In that event, the Court engages in a substituted judgment determination, to determine what the individual would choose if he or she were competent.   Further, the Court can only enter an order authorizing treatment based on a “heightened “preponderance of the evidence and specific findings (citing to Guardianship of Doe, 411 Mass. 512 (1992)).

Lastly, the Court held that the patient-psychotherapist privilege applies to all proceedings under s. 8B and, therefore, the court should have sustained objections to privileged patient-psychotherapist communications where there was no evidence of respondent’s waiver of such a privilege.

2016 Decisions

 In the Matter of A.M.,  2016 Mass. App. Div. 81

Facts: The Court committed A.M. under s. 35. A.M. appealed from the order based on insufficiency of the evidence and the SJC decision in In Re: G.P., 473 Mass. 112 (2015). (See below)

Holding: The Appellate Division (Northern District) affirmed the section 35 commitment under G.P., ruling that imminent does not mean immediate, and that the court need only find that the alleged likelihood of serious harm will occur in the reasonably short term.  It stated that “A finding that the harm will materialize in days or weeks is sufficient.”

In the Matter of B.F., 2016 Mass. App. Div. 18

Facts: B.F. was involuntarily hospitalized under s. 12(b). The hospital failed to discharge her or file a commitment petition by the end of the third business day. Nor had B.F. admitted herself voluntarily. When the hospital discovered its error on the fourth day, it filed a second section 12 without ever having discharged B.F.  Subsequently, it filed a commitment petition under s. 7&8.  B.F. filed a request for an emergency hearing alleging that the hospital had abused or misused the admission procedures under s. 12 and requesting an immediate discharge. The Court denied the relief. Prior to the hearing on the merits of the commitment petition, B.F. filed a motion to dismiss claiming that the court lacked jurisdiction to hear the matter since the hospital held B.F. without legal authority beyond the 3 day time period allowed in 12(d). The Court denied B.F.’s motion to dismiss, and committed B.F. after a hearing.

Holding: The Appellate Division (Western District) reversed the trial court’s denial of B.F.’s motion for immediate discharge and motion to dismiss the petition, and vacated the commitment. The Appellate Division exercised its discretion to hear the appeal despite its mootness, holding that a statute that restricts a person’s liberty is a matter of public importance and that the legal issue involved was one that was capable of repetition yet evading review.

The Court held that the failure to discharge a person or timely file a petition after the expiration of the 3-day maximum under s. 12(d) was an abuse or misuse of the 12(b) admission procedure. There is no legal authority to hold the person against his will after that point, unless a petition is timely filed. The Court stated that while the statute does not prohibit the filing of a second 12(a) and 12(b), the hospital must first discharge the person.  The Court relied on precedents in Hashimi, Magrini and Bournewood, all of which hold that the procedural requirements of c. 123 are to be strictly construed and strictly adhered to by lower courts.

In the Matter of B.L.,  2016 Mass. App. Div. 119

Facts: The Court committed B.L. under s. 7&8.  B.L. filed a motion to dismiss the petition for commitment on the ground that it was not signed by the superintendent or medical director of the facility. The only witness to testify with regard to the motion to dismiss stated that as the associate medical director of the facility he was authorized to assume administrative duties if the medical director was absent or unavailable. The Court denied the motion to dismiss and committed B.L . B.L. appealed, claiming that the lack of the superintendent’s or medical director’s signature on the petition for commitment deprived the trial court of jurisdiction to hear that petition.

Holding: Despite the appeal’s mootness, the Appellate Division (Western District) exercised its discretion to hear the matter.  It held that the issue was one of public importance, likely to reoccur in similar circumstances and become moot again before appellate review could be obtained.  The Court vacated the commitment order, holding that without any evidence supporting the medical director’s unavailability, the associate medical director of the facility was not authorized to sign the petition for commitment. The Court reasoned that SJC precedents requiring strict adherence to Chapter 123’s procedural requirement meant that there must be an “actual absence” of the medical director for a designated person to be able to sign in his or her absence.

In the Matter of J.R.,  2016 Mass. App. Div. 47

Facts: Following a recommitted to Bridgewater Hospital under 16(c), Bridgewater sent a notice to the District Attorney notifying the D.A. of its intention to discharge J.R. to a DMH facility. The D.A. filed a motion asking that J.R.’s movements be restricted to the buildings and grounds of any DMH facility to which he might be committed. The motion was allowed. When that  commitment order expired, DMH sought a recommitment, but without a building and grounds restrictions. The D.A. again sought the building and grounds restrictions and that motion was denied except for an order placing conditions on any movement of J.R. outside the grounds of the facility. The question on appeal was whether the trial court judge exceeded his authority when he issued an order that allowed J.R. to leave the grounds of a DMH facility with restrictions on his movements.

Holding: The Appellate Division (Western) determined that the appeal was moot due to the expiration of the order in question. The Court declined to address the issue because the parties were in agreement that the trial court exceeded its authority [under Commonwealth v. Carrera, 58 Mass. App. Ct. 86 (2003)] and no actual controversy existed. Further, it reasoned that the trial court could always stay any future such questionable order pending an appeal.

In the Matter of M.C.,  2016 Mass. App. Div. 140

Facts: M.C. was under a Rogers treatment plan for antipsychotic medication issued by the Probate Court. A District Court committed him to Bayridge Hospital, but denied an 8B petition to treat him with antipsychotic medications because it did not find an “immediate need” to interfere with the existing Probate Court treatment plan.  M.C. was later transferred to Tewksbury State Hospital. In the meantime, DMH had filed a motion in the Probate Court to amend the treatment plan, but then withdrew it prior to the scheduled hearing. A month later, DMH filed an 8B petition in the District Court seeking to have the court authorize the modified treatment plan it originally wanted the Probate Court to allow. DMH did not disclose the existence of the Probate Court Treatment Order.  At the hearing, M.C. argued a motion to dismiss the 8B petition on the ground that there was an existing Probate Court treatment plan and there was no “immediate need” for the 8B as would need to be shown under District Court Standard 7:01  The District Court denied M.C.’s motion and allowed the 8B petition upon a finding that there was an “immediate need” for the District Court to act. The hospital presented evidence that M.C., as a condition of his psychosis, suffered from polydipsia, which caused him to consume liquids to a “life-threatening level.” The excessive consumption was said to be diluting M.C.’s sodium level to a dangerous degree.

Holding: The Court addressed the merits despite mootness because the case presented a substantial issue of law concerning medical treatment authorization and affected the rights of people with mental disabilities. The Court first addressed the standing of the District Court Standards. “While lacking the force of law or rules, these Standards are ” “administrative regulations promulgated by the Chief Justice of the District Court that [are] treated as statements of desirable practice’ to be followed in the District Courts,” citing to Commonwealth v. Clerk-Magistrate of the W. Roxbury Div. of the Dist. Court Dep’t, 439 Mass. 352 , 357 (2003).

Although District Court Standard 7:01 does not specify the quantum of evidence required to establish “immediate need” for the District Court to act on an 8B petition rather than deferring to the Probate Court, the Appellate Division held that here there was sufficient  evidence to support the trial judge’s finding of an “immediate need” and that there was no abuse of discretion.  Notwithstanding its holding, the Appellate Division suggested that “where a District Court judge is confronted with a petition for treatment where there exists a Probate and Family Court treatment plan, the more prudent course of direction is for the court to require the petitioner to make an offer of proof on the need for “immediate action.”  It reiterated that the District Court Standards preferred referring the medication matter back to the Probate Court.

In the Matter of S.S., 2016 Mass. App. Div. 101

Facts: S.S. was admitted to the hospital on a CV admission. Upon her giving a 3-day notice, the hospital filed for commitment under sections 7/8, alleging a substantial risk of harm to others (2^nd prong). At the hearing, the hospital’s expert testified that he could not conclude that the behavior alleged in the petition created a likelihood of serious harm to others due to mental illness.  Instead, evidence was presented that the Respondent had a habit of going outside to smoke and walk around at 2 in the morning while she was living in the community. The court committed S.S. on a ground not alleged in the petition (3^rd prong.)  S.S. appealed and appellate counsel was assigned.  However, because the issues had not been preserved through objections and no motion for a required finding had been made, appellate counsel needed to file a motion for relief from judgment based on ineffective assistance of counsel.

The trial judge hearing the motion for relief from judgment stated that while she was inclined to vacate her prior commitment order, she had reservations about doing so because S.S. had meanwhile been transferred to a state hospital and no counsel for the state hospital had appeared at the hearing. The trial/motion judge denied S.S.’s motion without any findings and the appeal followed.

Holding: The Appellate Division Court held that by failing to file a motion for a required finding or argue that the evidence did not conform to the ground alleged in the petition, trial counsel had provided ineffective assistance, i.e., her conduct fell measurably below that of an ordinarily fallible lawyer. The Court also found that S.S. was prejudiced by her counsel’s failings because the attorney’s conduct deprived S.S. of an otherwise available substantial ground of defense.  Specifically, S.S. was entitled to a required finding based on the lack of expert testimony that she posed a substantial risk of harm to others yet counsel failed to move for such a finding. The Court also held that S.S.’s due process rights were violated when she was committed on a ground that, although perhaps supported by the evidence, was not alleged in the petition.  Since this “3^rd prong” type of harm had not been alleged in the petition, counsel should also have objected to the presentation of evidence as to this prong.  Because of the brief time in which Respondents have to prepare for a commitment hearing, due process requires notice of any and all grounds alleged.

2015 Decisions

In the Matter of A.B., 2015 Mass. App. Div. 5  (**Dismissal of Appeal affirmed by the Appeals Court in an unpublished decision at 89 Mass. App. Ct. 111(2016))

Facts: A.B. was a conditional voluntary patient who initially refused to sign a c. 123, section 3 transfer notice. This prompted the filing of 7&8 and 8B petitions. After counsel was appointed, A.B. subsequently agreed to the transfer, signing an amended transfer form, but then also signed a 3-day notice prior to the hearing date. The day before the hearing, A.B. was presented with another transfer form which she also signed. In addition, on the day of the hearing, A.B.  withdrew her 3 day notice.   A.B. filed a motion to dismiss the petition, arguing both that the hospital had failed to properly execute the initial transfer form that prompted the petition and also arguing  A.B.’s current status as a CV patient. The trial court denied the motion to dismiss and committed A.B., as well as authorizing the 8B.  A.B. appealed.

Holding: The Appellate Division (Northern District) dismissed the appeal as moot, reasoning that  A.B.’s case was based on unique circumstances and, therefore, of no precedential value. In response to an argument that hospitals routinely fail to fill out transfer forms properly, the Appellate Division refrained from considering this possible exception to mootness in the absence of any factual record that would allow it to evaluate these claims.  The Court noted specifically that there were no factual findings as to who presented the transfer form, or what, if any, information was communicated to A.B. regarding the transfer form and noted that it has no authority to issue a declaratory judgment or advisory opinion.

In the Matter of C.D.,  2015 Mass. App. Div. 29

Facts: The hospital held C.D. on a  section 12(b) and failed to either discharge him or file a petition for commitment by the end of the three-day period, as required by c. 123, section 12(d). When counsel for C.D. informed the hospital of its error, the hospital sought to remedy C.D.’s unlawful detention by “administratively” discharging and readmitting him under s. 12.  It then filed a petition for commitment. C.D. filed a request for an emergency hearing, alleging that the hospital had abused or misused the 12(b) admission procedure by not either releasing him or filing a timely petition. The Court hearing the 12(b) emergency request denied relief on the grounds that the hospital had “cured” its initial failure to comply with the 12(d) timeline and had validly readmitted C.D.  Prior to the hearing on the 7/8 petition, C.D. argued a motion to dismiss, alleging that the court lacked jurisdiction to hear the matter because the hospital failed to timely file the petition. The Court denied the motion and committed C.D.

Holding: The Appellate Division (Southern District) held that the hospital’s “administrative discharge” and readmission of C.D. was an abuse or misuse of the 12(b) admission procedure because the hospital was required under section 12(d) to either discharge C.D. or timely file a petition for commitment before the 3-day period had expired. The Court rejected the argument that the hospital could “cure” its failure to adhere to the strict timelines in the statute by “administratively” discharging – but never releasing- C.D. and then immediately “re-admitting” him.  It reversed the orders of the trial court, and remanded the matter for the immediate discharge of C.D.

The Court further determined that there was no evidence of an emergency that would have allowed the hospital to readmit C.D. under section 12(a); the only “emergency” was the hospital’s own failure to act according to the statute. The Court stated that the hospital’s alleged discharge of C.D. was no discharge at all because C.D. remained held against his will beyond the statutory 3-day period. The abuse of the 12(b) admission procedure consisted of the hospital’s resort to “the fiction of an administrative discharge in an attempt to resurrect its right to seek further deprivation of the patient’s freedom.” The Court further held that if a person’s liberty interest is to have any meaning under c. 123, s. 12(d), then the strict time requirements of the statute must be met. The Court also firmly rejected the Hospital’s attempts to distinguish Magrini by arguing that here the hospital did not ignore a court order for discharge, stating: “It cynically defeats the purpose of the statute to suggest that a court must order discharge before the patient is free to leave the facility. Placing the burden on the patient to sue for his release under the emergency provisions of the law further erodes the protection of his liberty interest that the Legislature created, and then strengthened by lowering the number of days the patient could be held. See G.L. c. 123, § 12, as amended by St. 2000, c. 249, §§ 4‑8, and St. 2004, c. 410, § 2.”

In the Matter of G.P., 473 Mass. 112 (2015)

Facts: The District Court committed G.P. to an addiction treatment facility under G.L. c. 123, section 35.  Citing insufficient evidence to commit, G.P. sought relief from the SJC Single Justice under 211.3.  The single justice reported up several questions to the full court.  They were a mix of substantive and procedural questions, primarily  relating to section 35.   However, because section 35 utilizes the same G.L. c. 123, sec. 1 definition of “likelihood of serious harm” as is applied in commitment proceedings under sections 7&8, much of the language in G.P. is applicable in civil commitment hearings, with the important caveat that the standard of proof in section 35 proceedings was determined to be “clear and convincing” and remains “beyond a reasonable doubt” in civil commitment proceedings under 7&8.

Holdings:  The likelihood of serious harm” holdings of G.P. are broken down below.

G.P. on the “first prong” risk and evidence of past conduct to show risk:

Relative to the” first prong”  likelihood of serious harm, i.e. “a substantial risk of physical harm to the person himself as manifested by evidence of, threats of, or attempts at, suicide or serious bodily harm”  the Court stated  “as a matter of experience and logic, the more recent the evidence of threats or attempts of suicide or infliction of  serious bodily harm, the more weight that evidence should carry in supporting a determination that there is a significant risk of self-harm. It would also seem to be the case that the more serious or the more numerous that previous attempts or threats of suicide are shown by the evidence to be, the more significance they would carry in making a positive risk assessment about the likelihood of harm.”  In the Matter of G.P., 473 Mass. 112 , 126 (2015).

However, the Court also cautioned that a section 35 commitment results in a “substantial curtailment of liberty” and as such, “[t]he context underscores the need of the judge to weigh carefully the substantiality of the specific evidence of threats or attempts that is offered.”  Id.

G.P. on the “second prong” and evidence of past conduct to show risk:

Relative to the second prong type of harm, i.e. “a substantial risk of physical harm to other persons as manifested by evidence of homicidal or other violent behavior or evidence that others are placed in reasonable fear of violent behavior and serious physical harm to them”,  the Court went on to state that its observations about the temporal relationship between the evidence of prior conduct and the necessary assessment of the risk of harm apply equally to the “second prong.” Id.   The Court clarified that “[i]n terms of the character of the evidence presented, the Legislature’s use of the word ‘homicidal,’ and phrases such as ‘violent behavior’ and ‘serious physical harm’ signifies an intent that evidence of conduct reflecting a substantial level of force and intensity be presented.”   Id.    The Court found that evidence that the Respondent was alleged to have “pushed” or “shoved” her mother at some unknown time in the past, with an unknown level of frequency and no evidence that the contact was “violent,” was insufficient to have warranted a ninety day commitment pursuant to section 35. Id. at 129 -130.

G.P. on the “third prong” and evidence of past conduct to show risk:

Relative to the third type of harm, i.e. “a very substantial risk of physical impairment or injury to the person himself as manifested by evidence that such person’s judgment is so affected that he is unable to protect himself in the community,” the Court in G.P. made clear that proof that the Respondent was a chronic alcoholic or substance abuser, standing alone, was inadequate. Id.   Referring back to the statutory language, the Court emphasized that the requisite harm under this “third prong” is “physical impairment or injury to the person himself” and the “very substantial “ risk of this type of harm is to be shown by evidence that “(1) the respondent’s judgment is so adversely affected by the abuse of alcohol or drugs that the respondent cannot protect himself or herself from physical harm, and (2) the respondent’s community does not include any reasonably available external source of adequate protection.”  Id., at 128-129. 

G.P. on likelihood of serious harm and imminency of risk on first and second prongs:

With regard to the imminency of the risk of harm, the Court held that “to establish a likelihood of serious harm under the first or second definitional prong, a showing of imminence is required – that is, the petitioner must demonstrate a substantial and imminent risk of serious injury to the respondent or others on account of the respondent’s alcohol or substance abuse, or both.” (emphasis supplied) In the Matter of G.P., 473 Mass. 112, 127 (2015).  The Court further clarified that while “imminent” does not mean “immediately” what must be shown is “a substantial risk that the harm will materialize in the reasonably short term – in days or weeks rather than in months.” Id., at 128.

G.P. on likelihood of serious harm and imminency of risk on third prongs:

The Court clarified that:

• [t]he focus of the evidence, then, must be on the respondent’s degree of impaired judgment due to alcohol or drug abuse (or both); the degree of likelihood that, as a direct consequence, the respondent will sustain or inflict injury (for example, by failing to take care of an existing medical condition that is exacerbated by continued abuse of alcohol or drugs, or by lengthy exposure to extreme weather conditions); and the inability of any other person or persons in the respondent’s community to provide protection against such risks.
• Finally, because a ‘very substantial’ risk of harm must be shown in connection with this third prong, the imminence of the risk becomes a factor that is even more important to consider than it is with respect to the other two prongs.
• , at 129.

In re J.B., 2015 Mass. App. Div. 144

Facts: J.B. signed a Conditional Voluntary application, which his doctor accepted after a finding that J.B. was competent to sign in voluntarily and understood the three day notice provisions.  Four days after admission, J.B. told staff verbally that he did not recall signing the CV and that he did not want to be there.  Seven days after that, he again gave verbal notice of his desire to leave. At that point, the hospital filed a commitment petition. J.B. filed a Motion to Dismiss, arguing that the commitment petition was not timely because the hospital should have filed within three days of J.B.’s original announcement that he did not want to be in the hospital. The District Court denied the motion and ordered his commitment.

Holding: Although J.B.’s commitment order had expired prior to the review of his appeal, the Appellate Division exercised its discretion and heard the case because it presented a question of public importance that was capable of repetition yet evading review.

The Appellate Division (Western District) held that it is a written notice from the patient that triggers a facility’s legal obligation to either release the person or file a petition to commit within 3 days and that a “bald comment by a patient” that he does not want to be there is insufficient.   The Court rejected J.B.’s arguments that his verbal comments triggered an obligation on the part of the hospital to “probe further” or provide him with a three-day notice form.  The Court reasoned that under both the CV statute at section 10/11 and DMH  and regulations, a matter of law a hospital has the discretion to require a written 3-day notice of a person’s intent to leave the facility.

In the Matter of J.C., 2015 Mass. App. Div. 82

Facts: Following his Notice of Appeal, J.C. late filed the 8C designation of the appeal on the record of proceedings, along with a motion to enlarge the time for filing the 8C document based on good cause. The trial court denied the relief sought and dismissed the appeal. J.C. appealed, arguing that the transcripts had been promptly ordered, the petitioner was not prejudiced by the late filing and the judge abused his discretion in denying the requested enlargement of time.

Holding: The Court (Northern Division) held that the trial court did not abuse its discretion when it denied J.C. the requested relief because the failure to file the 8C designation timely was a serious misstep and there was nothing in counsel’s affidavit that constituted good cause or excusable neglect.

In the Matter of L.C., 2015 Mass. App. Div. 98

Facts:  L.C. was recommitted to Bridgewater State Hospital following a hearing at which the most contested issue was the need for the strict security of Bridgewater, as opposed to a DMH facility. On appeal, L.C.  claimed that there was insufficient evidence to support a commitment to the strict security of Bridgewater State Hospital instead of a DMH facility. However, at the time the appeal was heard, L.C. had again been recommitted following a subsequent hearing.  There was (and still is) no definition of strict security in the statute or in case law.

Holding: Despite the argument that the definition of strict security was an issue of public importance that could evade review, the Appellate Division (Southern District) declined to exercise its discretion to hear the matter. Sufficiency of the evidence claims are deemed to be unique to the facts of the particular case and not “capable of repetition yet evading review.” The Court stated that  L.C. had failed to perfect the appeal within one year of the (appealed from) recommitment decision, thereby allowing it to become moot.  The Court further stated that  he could have availed himself of Rule 2 to expedite hearing on the appeal, but did not. While the Court agreed that a ruling on the meaning of strict security would have precedential value for the public, it held that the context of the appeal was specific to L.C. and the evidence supporting the legal finding was unique to him as well.

In the Matter of M.C., 2015 Mass. App. Div. 174

Facts: M.C. was admitted to the hospital on a CV. His attending physician later rescinded the CV without notice to M.C. or a family member, and filed a petition for commitment. M.C. moved to dismiss the petition on the ground that the hospital improperly rescinded his CV status without adhering to the statute and applicable regulations. The motion was denied and the responded was committed.

Holding: The Court (Northern District) determined that the appeal was moot as to M.C. because he had been discharged and the clinical determination of his capacity to remain on a CV status was an issue specific to him.  However, the Court determined that the  legal issue presented was not unique to M.C. and could affect potentially all persons on a CV status.  The Court vacated the commitment order, holding that the hospital had failed to comply with the DMH “periodic review” regulation, which the Court interpreted as  requiring it to provide notice to  M.C. of the intent to conduct an evaluation of his competency to remain on a CV. The Court held that compliance with the requirement is not just procedural but also substantive because it may have implications for a person’s liberty.

 

In the Matter of P.M., 2015 Mass. App. Div. 177

Facts: P.M. was on a CV and was presented with a section 3 notice of transfer to a DMH facility. She was told she needed to either sign it or refuse right there and then. Her hesitation was treated as a refusal.  After discussing the matter with her family and psychiatrist, P.M. changed her mind and sought to consent to the transfer. The hospital rejected her acceptance of the proposed transfer, stating that it had already filed a petition for commitment. P.M. filed a Motion to Dismiss, citing her acceptance of the transfer. The Court denied P.M.’s motion to dismiss and committed her.  On appeal, P.M. argued that she should have been given time to consider and accept the transfer.  She also argued that the DMH regulations that allow hospitals to treat a transfer refusal as the equivalent of a three-day notice exceed DMH’s statutory authority. (The latter issue had not been raised below.)

Holding: The Appellate Division (Northern District) determined the appeal to be moot but heard the matter because it presented an issue of public importance, capable of repetition yet evading review. The Court vacated the order, holding that the hospital had no authority to file a petition for commitment because P.M. told the hospital that she had changed her mind about the s. 3 transfer and under DMH regulations a person’s agreement to a transfer even after an earlier objection nullifies a petition for commitment.

Walden Behavioral Care v. K.I., 471 Mass. 150 (2015)

At G. L. c. 123, §§ 7 and 8, hearing District Court did not err in permitting the respondent’s treating psychotherapist to testify concerning statements the respondent made and his opinion of the respondent’s mental or emotional condition based on those statements, where the imminent harm exception to the psychotherapist-patient privilege set forth in G. L. c. 233, § 20B, applied. The statements indicated that the respondent posed a threat of imminently dangerous activity against himself and the psychiatrist disclosed the statements in order to place or retain the respondent at the facility. No statutory language suggested that the Legislature had intended to preclude a psychotherapist from disclosing a patient’s statements in such circumstances unless the psychotherapist has first warned the patient that a disclosure might be made [154-158]. The court-ordered examination exception to the psychotherapist-patient privilege did not apply, in that the examination had not been conducted in anticipation of a future proceeding in which the respondent’s mental capacity would be at issue [158-160].

Walden Behavioral Care v. K.I.,  471 Mass. 150 (2015)

Facts: At the commitment hearing, the hospital’s expert (K.I.’s treating psychiatrist) testified to statements that K.I. had made to him.  He opined – based on those statements- that K.I. was suicidal and needed to be committed.  It was uncontroverted that the psychiatrist had not given the K.I.  a  Lamb warning.  K.I. was committed largely on the basis of these unwarned statements since they evidenced suicidal ideation, intent and planning. K.I. appealed, claiming that the expert was precluded from testifying about the statements  because they were protected by the patient-psychotherapist privilege under G.L. c. 233, s. 20B and the attending psychiatrist never warned him that his statements might be admissible in future legal proceedings.  The Appellate Division denied the relief and the SJC sua sponte took up K.I.’s further appeal to the Appeals Court.

Holding: The SJC held that the District Court did not err in allowing the hospital’s expert to testify about K.I.’s statements because those statements  fell under the “imminent harm” exception to the patient-psychotherapist privilege set out in G.L. c. 233, s. 20B(a).  As a result,  no Lamb warning and waiver of the privilege were required.  Using a statutory interpretation analysis, the Court held that “the plain language of G.L. c. 233, s. 20B(a)  contemplates that statements might be made by a patient during the course of diagnosis and treatment that reveal that the patient would be a danger to himself or herself if released from a treatment facility, and permits disclosure of such statements for the purpose of retaining the patient in the facility for treatment.”  471 Mass. 150 at 156-157.

The Court rejected K.I.’s argument that this “imminent harm” exception to the patient-psychotherapist privilege only applied to the narrow circumstance of initially placing someone in a facility pursuant to section 12.  It held that the exception was broad enough to permit disclosure of unwarned statements evidencing imminent harm for the purpose not only of “placing” someone in a facility, but also “retaining” him in the facility through an involuntary civil commitment proceeding.    K.I. had argued that while Commonwealth v. Lamb, 365 Mass. 265 (1974)  addressed  court ordered examinations and held that a warning and a waiver were required,  the SJC had  later extended Lamb’s warning/waiver requirement to non-court ordered examinations in DYS v. A Juvenile, 398 Mass. 516 (1986).   The Court rejected this broad interpretation of DYS v. A Juvenile.  In doing so, it noted that the Lamb decision itself had determined that the exception in G.L. c. 233, s. 20B(a) applies to a situation “in which a patient is about to be discharged from an institution” and “makes disclosures during the course of treatment that reflect the patient’s need for treatment…in a hospital setting.”  471 Mass. 150 at 157.  The Court noted that its interpretation was consistent with the Legislature’s intent in enacting G.L. c. 233, s. 20B(a) .  Citing Lamb, the Court stated that the Legislature’s intent was to “dispense with the privilege where there is an imminent threat that a person who should be in custody will instead be at large.”  Id.

Lastly, the SJC held that subsection (b) of G.L. c. 233, s. 20B did not apply to these facts because K.I.’s examination was not court-ordered, and the examination was “not conducted in anticipation of a future proceeding in which the Patient’s mental capacity would be at issue.”  471 Mass. 150 at 159.  The doctor here examined K.I. for the purpose of “care and treatment.”  Because there was no Lamb warning required under these circumstances, there was no error in allowing the doctor to testify to K.I.’s statements without a warning and waiver of the privilege.

2014 Decisions

In re J.B., 2014 Mass. App. Div. 233 (2014)

Trial judge does not have the discretion to reject an otherwise -proper waiver, pursuant to G.L. c. 123, § 6(b), of a person’s right to a commitment hearing under §§ 7, 8, and 18.

Guardianship of L.H., 84 Mass. App. Ct. 711 (2014)

The court declined to reach the issue whether trial counsel was ineffective in assisting the ward at a proceeding on a petition seeking appointment of a guardian and a substituted judgment treatment order for administration of antipsychotic drugs, as well as at a proceeding seeking reinstatement of the substituted judgment treatment order with a modification for administration of antipsychotic drugs by injection, where the issues were not fully developed on the trial record, and where nothing in the extant record suggested that the standard of prejudice would be met in the case. [717-721] AGNES, J., dissenting

In re E.C., 2014 Mass. App. Div. 230 (2014)
In re P.I., 2014 Mass. App. Div. 116 (2014)
In re C.B., 2013 Mass. App. Div. 42 (2013)

To be subject of a petition under Ch. 123, sec. 7 & 8 a person must be a patient at a facility.

In the Matter of P.I.,  2014 Mass.App.Div.116

Facts: P.I. was charged with A&B and threats and held on cash bail. The  District Court ordered an evaluation for competency to stand trial under section 15(b) and he was found incompetent to stand trial. P.I. was then committed under s. 16(b) to Bridgewater State Hospital.  Pursuant to section 17, P.I. later requested, and was granted, a new competency evaluation.  The Court ordered the new competency evaluation to take place at Bridgewater under s. 15(b). It was conducted at BSH and the evaluator opined that P.I. had been restored to competency.  However, the evaluator further recommended that he be returned to BSH under section 18(a).  The District Court made a subsequent finding of competency based on the evaluation, which ended the 16(b) commitment. Based on the BSH evaluator’s recommendation for further observation under s. 18(a), the court ordered a 30 day evaluation under that section, which was then followed by an 18(a) commitment. P.I. appealed the 18(a) order, the denial of his motion to dismiss and the court’s allowance of BSH’s motion to amend the 18(a) petition for commitment under to one under sections 7/8.

Holding: The Appellate Division (Southern District) held that the P.I.’s motion to dismiss should have been allowed and the 18(a) commitment order vacated. Because of the failure to follow the provisions of 18 (a) requiring that the 18(a) evaluation be requested  by the person in charge of a “place of detention” and take place at such a “place of detention,”  P.I. was not lawfully a patient at BSH at the time it petitioned for commitment.   Any 18(a) examination needed to be conducted at a “place of detention” – here, the courthouse lock-up, not Bridgewater.  The Appellate Division therefore vacated the subsequent commitment and related orders.

Applying principles of statutory construction,  the Court held that the “plain meaning”  of section 18(a) was that the District Court was required to conduct an examination of P.I. at the courthouse because the court was where P.I. was being detained following the finding of competency to stand trial.   His 15(b) evaluation period at BSH could not constitute an 18(a) evaluation at a “place of detention.”

In the Matter of J.B., In the Matter of E.J., In the Matter of E.E., 2014 Mass. App. Div. 233

Facts: Three unrelated appeals were consolidated due to the similarity in factual and legal claims. Each respondent was being held at Bridgewater State Hospital and in each case the hospital filed a commitment petition. Each respondent made a written waiver of his right to a hearing under G.L. c. 123, s. 6(b). In each case the hospital objected to the waiver, and the trial judge denied the waiver. On appeal, the appellants argued that the court had no authority to deny a person’s right to waive a commitment hearing under the statute provided that the requirements of section 6(b) are met.

Holding: The Appellate Division (Southern District) held that a trial judge does not have the discretion to deny a person his statutory right to waive his commitment hearing provided that the waiver is knowing and voluntary and the person waives his hearing in writing after consultation with his attorney. The Court further held that Bridgewater had standing in the appeal because it had a legally cognizable interest in any post-waiver commitment hearing that might arise due to a respondent’s decision to subsequently request such a hearing based on good cause.  NOTE:  What constitutes “good cause” for requesting a hearing after a waiver is also currently up on appeal in March 2018.

2013 Decisions

In the Matter of C.B.,  2013 Mass. App. Div. 42

Facts: C.B. had been committed to  BSH pursuant to section 16(c) after the District Court found him incompetent to stand trial. At the hearing on a subsequent recommitment petition under s. 16(c), the Court first addressed the issue of competency and found C.B. competent to stand trial.  It therefore  ordered that he be returned to the criminal court for a trial on the underlying criminal charges. Instead of immediately transporting C.B. back to the criminal court that day, BSH “held him for transport” the following day and in the meantime, filed a petition for commitment under sections 7/8. The following day, C.B. was brought to the criminal court and the underlying criminal charges were dismissed. However, instead of being released, C.B. was detained on the pending 7/8 petition and returned to  BSH.   At his commitment hearing, C.B. argued a motion to dismiss on the grounds that, at the time that the hospital’s 7/ 8 petition was filed, C.B. was no longer a “patient” at BSH and so BSH was therefore not able to petition for his commitment, even under 7/8.  The Court denied the motion and ordered C.B.’s commitment.

Holding: The Appellate Division (Southern District) vacated the commitment order because C.B. was no longer a patient of BSH when the it  filed a 7&8 petition against him. The Court held that a commitment petition may only be filed against one who is a lawful patient of a facility.  The petition cannot be based upon an expired status, or “former patient” status, regardless of whether the person is physically at the facility for other reasons.  A person’s prior patient status does not survive a lapse in a commitment under c. 123 and can only be initiated by a re-hospitalization under section 12.

Commitment of M.B., 2013 Mass. App. Div. 8

Facts: The Court committed M.B. under sections 7&8 and authorized treatment under section 8B. M.B. claimed on appeal that the court erred in allowing the Hospital’s expert to testify based on impermissible hearsay.  A second ground for appeal was the expert’s testimony as to unwarned statements made by M.B. in the 8B portion of the hearing.

Holding: Although M.B. had been discharged, the Appellate Division (Northern District) decided the matter because the evidentiary issues raised were not unique to M.B. and involved matters of public importance, specifically those involving respondents’ rights at commitment hearings.

On review of the merits,  the Appellate Division determined that the evidence had been  improperly admitted.  However, it denied relief since the issue as to admissibility had not been  properly preserved at commitment hearing.  There had been no hearsay objection and no motion to strike this evidence.  The Court also denied relief on the 8B claims because while there was error in admitting privileged communications – no proper warning and waiver – the client had been discharged and the relief sought was moot.

2012 Decisions

Commitment of K.R.,  2012  Mass. App.  Div.  229

Facts: K.R. appealed from an order of commitment based on insufficiency of the evidence.

Holding: The Appellate Division (Northern District) dismissed the appeal as moot because K.R. had been discharged and the issue on appeal was legal sufficiency of the evidence.  The sufficiency claims were deemed to be unique to the particular case, unlikely to arise in similar circumstances, and would therefore have no precedential value.  The Court therefore declined to exercise its discretion to decide the case on the merits.

2011 Decisions

Kirk v. Commonwealth, 459 Mass. 67, 944 N.E.2d 135 (2011)

The SJC held that civil recommitment proceedings, pursuant to G.L. c. 123, § 16(c) are presumptively open to the public. The closure of a portion or the entire proceeding may only occur where the party seeking closure demonstrates an overriding interest that is likely to be prejudiced and the closure is no broader than to protect that interest. The trial court must consider all reasonable alternatives to closing the proceedings and make adequate findings of fact adequate to support the closure.

2010 Decisions

Melrose-Wakefield Hospital v. H.S., 2010 Mass. App. Div. 247 (2010)

The mere calling of a case, absent the swearing of a witness or some evidence being taken, does not constitute “commencement” of a commitment hearing under G.L. c. 123, § 7(c).

2008 Decisions

Newton-Wellesley Hospital v. Magrini, 451 Mass. 777 (2008)

The SJC interprets the language of G.L. c. 123, § 12(b) broadly, to provide a statutory right to an emergency hearing for persons temporarily involuntary committed, if there is reason to believe that the admission resulted from “an abuse or misuse” of not only the enumerated provisions of subsection 12(b) but any other circumstances that may have resulted in a wrongful admission. The Court also held that unless the request for an emergency hearing is “patently frivolous,” the holding of a hearing where the patient is present and may be heard is mandatory. Whether the hearing is evidentiary is within the judge’s discretion.

2007 Decisions

Petition of Andrews, 449 Mass. 587 (2007)

Burden of Proof in 9(b) hearings: The SJC established that civilly committed patients applying for discharge or transfer to different facility under G.L. c. 123, § 9(b) must prove by a “fair preponderance of the evidence” that his or her situation has significantly changed since last commitment was reviewed judicially, either on the basis of new evidence or new factual developments, in order to justify discharge or transfer.

2006 Decisions

Guardianship of Zaltman, 65 Mass. App. Ct. 678, 843 N.E.2d 663 (2006)

A person under guardianship who has been previously adjudged incapable of making his or her own medical decisions is entitled to an evidentiary hearing to demonstrate that he or she is competent to select counsel of his or her own choosing to represent her in a challenge to guardianship under G.L. c. 201, §§ 13 and 13(a) (seeking discharge on grounds of changed medical circumstances and failure of guardian to meet fiduciary responsibilities), where evidence exists that the interests of the ward and guardian are adverse and that the ward may have recovered competency. If it is found that she does have capacity she may retain counsel of her own choosing or if she is found not have such capacity, new, independent counsel must be assigned to zealous advocate for her in those proceedings

2005 Decisions

Care & Protection of Erin, 443 Mass. 567 (2005)

Moot Question. Practice, Civil, Due Process of Law Standard of proof. Evidence, Presumptions and burden of proof.

The court concluded that where a petition is filed seeking review and redetermination of an initial determination pursuant to G. L. c. 119, s 26, that a child is in need of care and protection, the filing party bears an initial burden of producing some credible evidence that circumstances have changed since the initial determination such that the child may no longer be in need of care and protection, after which the Department of Social Services bears the ultimate burden of proving, by clear and convincing evidence, that the child is still in need of care and protection. [570-572] Would same apply to G.L. c. 123, § 9(b) proceedings?

2003 Decisions

Commonwealth v. Carrara, 58 Mass. App. Ct. 86, 787 N.E.2d 1128 (2003)

G.L. c. 123, § 16(e) authorizes a court to impose certain restrictions on the movements of a person committed to a Department of Mental Health facility pursuant to § 16. However, DMH must be permitted to exercise its own discretion in how such restrictions on a patient’s movements within the buildings and grounds are implemented, unless the court makes a finding that there is but one way to do so or DMH is unable or unwilling to provide the required security.

2002 Decisions

Foss v. Commonwealth, 437 Mass. 584 (2002)

The SJC held that the plain meaning of G.L. c. 123, § 16(f) requires the Department of Correction, when computing parole eligibility for a defendant found incompetent to stand trial, to base its calculation on the maximum sentence for the single most serious crime charged, not the maximum consecutive sentences of all crimes charged.

In the Matter of Laura L., 54 Mass. App. Ct. 853, 768 N.E.2d 605 (2002)

A Lamb warning is required to be given to an individual during a court-ordered examination pursuant to G.L. c. 123, § 12(e) for involuntary commitment to a mental health facility. Privileged statements made to a psychotherapist during this examination may only be disclosed at the commitment hearing if the individual has made a knowing and voluntary waiver. Where the issue of whether an individual is capable of making such a waiver is raised, it is the duty of the judge to make an inquiry in order to avoid a miscarriage of justice.

Cohen v. Bolduc, 435 Mass. 608 (Mass. 2002)

Absent an express limitation by a principal in the health proxy itself, G.L. c. 201D does not prevent an agent from making the treatment decision to commit a principal to a mental health facility, unless the principal objects to the commitment. The SJC interpreted treatment under the health care proxy statute broadly to include treatment of any physical or mental conditions. If the principal objects or revokes the health proxy, the proxy statute divests the agent of all treatment making authority, including the commitment or retention of the principal at a mental health facility. The principal may then only be committed or retained at a mental health facility if a court determines that he or she is incapacitated.

Canavan’s Case, 432 Mass. 304, 733 N.E.2d 1042 (2002)

Expert medical testimony based on personal observations or clinical experience is subject to the Lanigan analysis for determination of its admissibility into evidence. Such expert testimony or evidence is only admissible if the theory and methodology by which the witness arrives at his or her opinion is reliable. Commonwealth v. Lanigan, 419 Mass. 15, 641 N.E.2d 1342 (1994); see also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Where an expert opinion is challenged, the proponent of the evidence must lay an adequate foundation “either by establishing general acceptance in the [relevant] scientific community or by showing that the evidence is reliable or valid through an alternate means.” Commonwealth v. Sands, 424 Mass. 184, 185-86 (1997). The abuse of discretion standard is to be applied during appellate review of the admissibility of scientific evidence.

2001 Decisions

Adoption of Sherry, 435 Mass. 331 (2001)

Does analysis of this case apply to DA’s “right to be heard” under G.L. c. 123, § 16(d)? In a proceeding to dispense with parental consent to adoption, a District Court judge erred in excluding from evidence, on the basis of work-product privilege, portions of an expert’s report, and erred in admitting in evidence, under G. L. c. 119, s. 29D, an unsworn, written statement by the foster mother; however, neither error affected the judge’s findings, supported by the record, constituting the clear and convincing evidence required to dispense with the father’s consent to the adoption of his child. [335-339]

2000 Decisions

Bournewood Hospital v. Baker, 431 Mass. 101, 725 N.E.2d 552 (2000)

The superintendent of a mental health facility or hospital is without authority to petition for the commitment of a conditional voluntary patient under G.L. c. 123, §§ 7 and 8, where the patient has not given written notice of intent to leave or withdraw from the facility pursuant to G.L. c. 123, § 11. Absent an order for involuntary commitment, an order under G.L. c. 123, § 8B authorizing treatment with antipsychotic medication is invalid.

1999 Decisions

Myers v. Saccone, 1999 Mass. App. Div. 305 (1999)

Absent a client’s consent to a continuance, a court must dismiss a petition for involuntary commitment where a hearing is not commenced within the statutorily prescribed 14-day period (G.L. c., 123 § 7(c)). Hashimi v. Kalil, 388 Mass. 607, 446 N.E.2d 1387 (1983).

Shine v. Vega, 429 Mass. 456 (1999)

Right to Refuse/Consent to Emergency Treatment

Discussion of cases considering the circumstances in which a competent individual may refuse medical treatment necessary to save that individual’s life [463-4641 and discussion of the emergency exception to the informed consent doctrine [464-466].

1998 Decisions

Gorod v. Tabachnick, 428 Mass. 1001 (1998)

Superintendence of lower courts

“With the hope that it will eliminate confusion in the future, we take this opportunity to reiterate what we have said in other cases concerning clerks of court or registers (or a member of their staff) who refuse to accept for filing a notice of appeal tendered by a litigant. HN2 Clerks and registers, whether elected or appointed, are ministerial officers of the court when it comes to receiving and filing papers. (Citations omitted.) In the absence of an order from a judge, they may not refuse to accept a notice of appeal, even if they believe that no appeal is available or that the notice is untimely or otherwise defective. (Citations omitted.)”